Vikas Goyal & Anr vs M/s Ireo Pvt. Ltd

Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Sameer Chaudhary, Advocate, for the opposite party.

Mr. Vikas Goyal and Dr. Seema Goyal have filed above complaint for directing the opposite party to (i) handover possession of Apartment to them, complete in all respect with all amenities and facilities within 3 months; or in alternative (ii) refund entire amount deposited by them with interest @18% per annum from the date of respective deposit till the date of actual payment; (iii) pay interest @12% per annum on the amount deposited by them with the opposite party, from July, 2014 till the date of actual possession; (iv) pay Rs.7000/- per day, in case of failure to handover possession within stipulated period; (v) pay Rs.1500000/-, as compensation for mental agony and harassment; (vi) pay Rs.200000/- as litigation costs; (vii) refund the amount collected for car parking space with interest @18% per annum; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Skyon” at village Ullawas, Golf Course Extension Road, Sector-60, Gurgaon, in the year 2010 and made wide publicity of its facilities and amenities. The complainants booked Apartment No.803, super area 1524 sq.ft. on 14.12.2010 and deposited booking amount of Rs.750000/-. The opposite party issued Allotment Offer Letter dated 14.01.2011 and executed Apartment Buyer’s Agreement on 13.03.2012. Annexure-IV of the agreement provides payment plan as “construction link payment plan” and basic sale price of Rs.9608820/-. As per demand, the complainants deposited Rs.1190216/- on 29.04.2013, Rs.1039025/- on 25.01.2014, Rs.1033089/- on 29.05.2014, Rs.1178000/- on 19.11.2014, Rs.1178000/- on 02.01.2015, Rs.996512/- on 26.02.2015 and 09.03.2015. Clause-13.3 of the agreement provides 42 months period from the date of approval of the building plans and/or fulfilment of the preconditions imposed thereunder as “commitment period” for delivery of possession with grace period of 180 days. Said period has expired but the opposite party could not complete the construction nor offered possession. The opposite party has illegally charged for car parking space. The complainants gave a notices dated 04.04.2016 and 11.08.2016 that due to delay in possession, they were suffering loss of rent as well as interest. In spite of service of notice, the opposite did not respond. Then this complaint was filed on 21.09.2016, alleging deficiency in service and unfair trade practice.

The opposite party filed its written reply on 22.11.2016 and contested the complaint. The material facts relating to the project, allotment of the apartment to the complainants, execution of ABA in their favour and payments made by them, have not been disputed. The opposite party stated that building plan was approved on 27.09.2011. The opposite party applied for “No Objection Certificate” from Fire Department on 13.01.2012, which was delayed and issued on 25.09.2013. The period of 42 months is liable to be counted from 25.09.2013 and due date of possession would be 24.03.2017. The complainants paid instalment of “casting of top floor roof slab”, with delay on 12.03.2015. Thereafter the complainants stopped payment. The construction of first phase of the project, which consisted 512 units were completed and the opposite party applied for issue of “occupation certificate” for Block C, D, E and EWS block, which was issued on 26.08.2016. The opposite party was going to complete the construction of Block-F, in which the complainants was allotted flat. The complaint was premature. There was neither deficiency in service nor any unfair trade practice was committed and the complaint is liable to be dismissed. The agreement contained an arbitration clause and the complainants are liable to be relegated for arbitration.

The complainants filed Affidavits of Evidence of Vikas Goyal and Seema Goyal. The opposite party filed Affidavit of Evidence and Additional Affidavit of Evidence of Subhasis Lahiri. In the Affidavit of Evidence of Subhasis Lahiri, it has been stated that construction of Block-F was also completed and “occupation certificate” was obtained on 14.09.2017. Thereafter, the opposite party offered possession to the complainant on 25.09.2017. In the Affidavit of M.K. Singh, filed on 20.12.2022, the opposite party stated that after issue of letter dated 25.09.2017, the complainants had delayed payment of balance amount and other formalities as such, delivery of possession had been delayed and the complainants had taken possession on 07.03.2018. Both the parties have filed their written synopsis.

The counsel for the complainants submitted that 42 months period has to be counted from the date of approval of building plan as after approval of building plan, the opposite party started construction and was realising instalments. The building plan was approved on 27.09.2011. The opposite party issued demand letter dated 07.10.2011 of the instalment of “commencement of excavation” as such 42 months period expired on 26.03.2015 and 180 days grace period expired on 26.09.2015. Supreme Court in Civil Appeal No.4801 of 2019, M/s. Ireo Victory Valley Pvt. Ltd. Vs. Shamshul Hoda Khan (decided on 11.12.2020), held that as the builder was realizing instalments of construction stages prior to issue of NOC from Fire Department, as such, period for delivery of possession could not be counted from the date of issue of NOC from Fire Department. Supreme Court in M/s. Ireo Private Limited Vs. Aloke Anand, (2022) 9 SCC 412, arising out of same project of the opposite party, has held that even after offer of possession on 25.09.2017, the opposite party was not in position to deliver possession. Possession was handed over on 07.03.2018 as such the complainants are entitled for delay compensation for the period of 27.09.2015 to 06.03.2018. Judgement of this Commission passed in CC/1639/2016 Vandana Kapila Vs. M/s. Ireo Pvt. Ltd. (decided on 21.12.2021) has been stayed by Supreme Court in Civil Appeal No.3022 of 2022 Vandana Kapila Vs. M/s. Ireo Pvt. Ltd., vide order dated 29.04.2022 as such no reliance can be placed upon it. In Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, the builder started demands for instalments after issue of NOC from Fire Department while in the present case, the opposite party started realising instalments of construction immediately after sanction of building plan as such, this case law is distinguishable on fact.

We have considered the arguments of the counsel for the parties and examined the record. Clause13.3 of the agreement is quoted below:-

“13.3. Subject to Force Majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions of this agreement and not being in default of any provision of this agreement including but not limited to the timely payment of all dues and charges including the total sale consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to handover possession within 42 months from the date of approval of the Building Plans and/or fulfilment of the preconditions imposed thereunder (Commitment Period). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days “grace period” after the expiry of the said “Commitment Period” to allow for unforeseen delays in obtaining Occupation Certificate etc. from the DTCP under the Act, in respect of Skyon project.”

The building plan was approved on 27.09.2011. Clause-3 of the approval letter imposed a condition for obtaining clearance/NOC from Fire Authority and submit within 90 days. The clearance/NOC from Fire Authority is mandatory under Section 15 of Haryana Fire Safety Act, 2009. A three member Bench of Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (paragraph-18.9), considered similar term of the agreement and held that  42 months period had to be counted from the date of issue of NOC of Fire Department. This judgment has been followed by a three member bench of this Commission in CC/1639/2016 Vandana Kapila Vs. M/s. Ireo Pvt. Ltd. (decided on 21.12.2021). Judgment in Civil Appeal No.4801 of 2019, M/s. Ireo Victory Valley Pvt. Ltd. Vs. Shamshul Hoda Khan (decided on 11.12.2020), is of two member bench as such Abhishek Khanna’ s case (supra) will prevail.

The counsel for the complainants however submitted that in the present case, the opposite party had not applied for issue of NOC of Fire Department within 90 days from approval of building plan. Building plan was approved on 27.09.2011 but “No Objection Certificate” from Fire Department was applied on 13.01.2012. The opposite party started construction and realizing instalments from demand letter dated 07.10.2011 of the instalment of “commencement of excavation” as such 42 months period has to be counted from the date of approval of building plan and expired on 26.03.2015 and 180 days grace period expired on 26.09.2015. We do not agree with the arguments of the counsel for the complainants. Clause-13.3 was subject fulfilment of the preconditions imposed thereunder as such 42 months period has to be counted from the date of issue of fire NOC and not from date of approval of building plan. Section 15 of Haryana Fire Safety Act, 2009, requires applying for approval of firefighting scheme before commencement of construction. Similarly clause-3 of the approval letter of building plan dated 27.09.2011 required for submitting Fire NOC within 90 days of the approval. If the opposite party did not apply for approval of firefighting scheme before commencement of construction or did not submit fire NOC within 90 days, before Municipal Commissioner, then it would have faced its consequences. The complainant cannot take any benefit of it. In view of these facts, due date of possession as per agreement dated 13.03.2012 was 24.03.2017 and grace period was up to 24.09.2017. Possession was offered on 25.09.2017. There was no delay in offer of possession.

The counsel for the complainants submitted that Supreme Court in M/s. Ireo Private Limited Vs. Aloke Anand, (2022) 9 SCC 412, arising out of same project of the opposite party, has held that even after offer of possession on 25.09.2017, the opposite party was not in position to deliver possession. Possession was handed over on 07.03.2018. We do not agree with this argument. The opposite party obtained “occupation certificate” on 14.09.2017 and offered possession to the complainants on 25.09.2017. In the Affidavit of M.K. Singh, filed on 20.12.2022, the opposite party stated that after issue of letter dated 25.09.2017, the complainants had delayed payment of balance amount and other formalities as such, delivery of possession had been delayed and the complainants had taken possession on 07.03.2018. This affidavit remained uncontroverted. Issue of “occupation certificate” is prima facie proof of completion of the construction. The complainants never raised any protest before the opposite party after issue of letter dated 25.09.2017 that construction was incomplete on the spot. In the absence of any protest, argument based upon the fact of another case, is not liable to be accepted.

ORDER

ln view of aforesaid discussions, the complaint is disposed off with direction that if the opposite party has not executed conveyance deed in favour of the complainants, then the opposite party will execute conveyance deed immediately after fulfilment of the conditions by the complainants as per agreement.